{¶ 105} The question presented in this appeal is whether the residency requirement in the charter of the city of Dayton survives the prohibition against such regulations in R.C. 9.481. That question presents two issues of law. The first issue is whether the city's residency requirement is entitled to the protection of the home-rule amendment, Section 3, Article XVIII of the Ohio Constitution. If that protection applies, then the second issue for determination is whether R.C. 9.481 was enacted pursuant to the authority conferred on the General Assembly by Section 34, Article II, which trumps the protections afforded local legislation by the home-rule amendment.
{¶ 106} Section 3, Article XVIII provides:
{¶ 107} "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
{¶ 108} In Canton v. State (2002),95 Ohio St. 3d 149, 2002-Ohio-2005, 766 N.E.2d 963, the Supreme Court held:
{¶ 109} "To constitute a general law for purposes of home-rule analysis, a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally." Id. at syllabus.
{¶ 110} R.C. 9.481 fails the tests for a general law in several ways, but most clearly because it does not "set forth police, sanitary, or similar regulations, (but) purport(s) only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations." By its terms, R.C. 9.481 is wholly and exclusively prohibitory. Therefore, R.C. 9.481 is not a general law for purpose of Section 3, Article XVIII that nullifies the residency requirement in the charter of the city of Dayton. *Page 489
{¶ 111} Even if R.C. 9.481 were found to satisfy the test for a "general law," it would not prevail over the conflicting provisions of Dayton's residency requirement for its employees, because the city's residency requirement is an exercise of its proprietary authority, which is protected by Section 3, Article XVIII, from the state's exercise of its police power, absent some other prohibition.
{¶ 112} The general laws of the state to which Section 3, Article XVIII refers "are obviously such as relate to police, sanitary, and other similar regulations, and which apply uniformly throughout the State." Fitzgerald v.Cleveland (1913), 88 Ohio St. 338, 359, 103 N.E. 512. They are expressions of "that inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy in a broad sense demands, for the benefit of society at large, regulations to guard its morals, safety, health, order, or to insure in any respect such economic conditions as an advancing civilization of a highly complex character requires." Miami County v. Dayton (1915),92 Ohio St. 215, 223-224, 110 N.E. 726.
{¶ 113} Municipalities may likewise exercise the police power. See, e.g., State ex rel. Tomino v. Brown (1989), 47 Ohio St. 3d 119, 549 N.E.2d 505. However, the grant to municipalities of "all power of local self-government" in Section 3, Article XVIII is broader than the authority to exercise the police power. Therefore, not all local legislation is necessarily an exercise of a municipality's police power. Further, it is only those enactments of "local police, sanitary and similar regulations" that are subject to the superseding provisions of the home rule amendment when they conflict with a general law. State ex rel. Canada v. Phillips (1958),168 Ohio St. 191, 5 O.O.2d 481, 151 N.E.2d 722.
{¶ 114} The police power is a governmental power, the power to prescribe rules regulating the conduct of the public generally in order to provide for the common welfare of the governed. State v. Martin (1958), 168 Ohio St. 37,5 O.O.2d 293, 151 N.E.2d 7. As applied to business activities, it is the power to regulate them as opposed to the power to engage in them. State v. Helvering (1934),292 U.S. 360, 54 S. Ct. 725, 78 L. Ed. 1307. When engaged in a business activity, a municipal corporation acts as a proprietor, not a governmental entity performing a regulatory function.
{¶ 115} Notwithstanding the fact that it is a municipality, and the fact that the city of Dayton's residency requirement regulates who may be its employees, that determination is an exercise of the city of Dayton's proprietary authority, not an exercise of its police powers. The city's exercises of its authority as a proprietor are protected by the home-rule amendment from interference by the General Assembly through an exercise of the state's police powers, except to the extent that the city's exercise of its proprietary authority violates some other constitutional prohibition, such as the Equal Protection Clause, which the General *Page 490 Assembly may use its police powers to enforce. No such violation is argued. Therefore, regardless of any conflict with R.C. 9.481, that section, being an exercise of the police power, does not supersede the city's residency requirement pursuant to Section 3, Article XVIII, because the residency requirement is an exercise of the city's authority to act for its own proprietary purposes. The action that the city took in adopting its residency requirement for employees is not different in kind and character from deciding from whom it will purchase its supplies, which is plainly a matter protected from state intrusion by the home-rule amendment.
{¶ 116} Even if R.C. 9.481 fails as a general law for purposes of home-rule analysis, it nevertheless prevails over the protections the home-rule amendment provides if the General Assembly passed R.C. 9.481 pursuant to the authority conferred on it by Section 34, Article II. That section states:
{¶ 117} "Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provisions of the constitution shall impair or limit this power."
{¶ 118} The first thing to understand about Section 34, Article II is that, as a grant of authority to the General Assembly, it is redundant. Section 1, Article II of the Ohio Constitution provides: "The legislative power of the state shall be vested in a General Assembly * * *." That grant of authority was originally provided by Article I, Section 1 of the 1802 Ohio Constitution. Swisher, Ohio Constitution Handbook (1990), Editor's Comment, 209. The "legislative power" conferred on the General Assembly includes an inherent power to prescribe regulations that promote the education, health, safety, peace, morals, and general welfare of the community, which is exercised under the rubric "police power." State v.Stouffer (1971), 28 Ohio App. 2d 229, 57 O.O.2d 342,276 N.E.2d 651. The General Assembly's exercise of the police power is not plenary, but is subservient to other provisions of the Ohio Constitution. French v. Dwiggins (1984),9 Ohio St. 3d 32, 9 OBR 123, 458 N.E.2d 827.
{¶ 119} The police power conferred on the General Assembly by Section 1, Article II is fully sufficient to authorize any legislation comprehended by Section 34, Article II. However, because of apprehensions that other provisions of the Constitution might impair the General Assembly's exercise of its Section 1, Article II powers for that purpose, Section 34, Article II was adopted. Steinglass and Scarselli3 explain. *Page 491
{¶ 120} "The adoption of Article II, section 34 was one of the major achievements of the Progressive movement at the 1912 convention. In 1912 shortly after the Constitutional Convention convened but long before it completed its work, the Ohio Supreme Court in State, ex rel. Yaple v. Creamer (1912)4 upheld the constitutionality of Ohio's first workers' compensation laws. However, the statute was voluntary, and the court suggested that coercive legislation would violate the Ohio Constitution (ibid.; see also Taylor v. AcademyIron Metal Co. 1988: 151).5 Section 34 insulated a mandatory program of workers' compensation from constitutional attack by providing `a broad grant of authority to the legislature to provide for the welfare of all working persons' (Rocky River v. State Employment RelationsBoard, 1989): 13-14)6 and by `empower[ing] the General Assembly to regulate the employment relationship without running afoul of the now-obsolete judicial doctrine of "economic substantive due process"' (Brady v. Safety-Kleen Corp., 1991: 639).7
{¶ 121} "Section 34 accomplished the latter purpose by containing a statement, identical to the one in section 33, that `no other provision of the constitution shall impair or limit this power.' This provision insulated the program from claims that legislation enacted under its authority violated other provisions of the Ohio Constitution."
{¶ 122} The history and origin of Section 34, Article II are germane to its coverage. An editor's note to the discussion of Section 34, Article II in Baldwin's Ohio Revised Code Annotated states that it was among "[t]he key reforms advocated by organized labor in the late nineteenth and early twentieth centuries (that) included a living wage, decent working conditions, and job security." Those matters concern the working environment. Since its adoption, judicial approval of legislation enacted pursuant to Section 34, Article II has been confined to matters that involve such conditions of employment. See Rocky River v. State Emp. Relations Bd. (1989),43 Ohio St. 3d 1, 35, 539 N.E.2d 103 (Holmes, J., dissenting).
{¶ 123} The trial court in the present case departed from that standard, reasoning that the "general welfare of all employees" clause in Section 34, Article II authorized enactment of R.C. 9.481, prohibiting limitations on the place of residence of municipal employees. The trial court erred when it so held, because application of a general provision to facts beyond the range of those in special *Page 492 provisions to which it is attached lets the tail wag the dog and risks extending a general provision to matters beyond the intention of those who adopted it. Determination of that intention is the goal of the canon of interpretationnosciture a sociis: to interpret a general term to be similar to more specific terms in a series. As we apply that principle, and consistent with its reference specifically to laws "establishing a minimum wage, and providing for the comfort, health, (and) safety" of all employees, the "general welfare" clause of Section 34, Article II authorizes only legislation regulating conditions of employment within the working environment.
{¶ 124} R.C. 9.481 goes beyond those limits by prohibiting municipal legislation that places limits on where employees of the municipality may reside. Such regulations apply to conditions for employment, not to conditions of employment, which are those that pertain to the working environment. Therefore, R.C. 9.481 was not validly enacted pursuant to Section 34, Article II, and its superseding provision does not trump the protections that the home rule amendment affords to Dayton's residency requirement. Instead, and necessarily, R.C. 9.481 was enacted pursuant to the authority conferred on the General Assembly by Section 1, Article I, and to that extent is subject to Section 3, Article XVIII, the home rule amendment.
{¶ 125} I would hold that the city of Dayton's residency requirement for its employees, not being a "local police, sanitary or similar regulation," is not subject to the superseding provisions applicable to conflicts with general laws in Section 3, Article XVIII and that R.C. 9.481 cannot supersede the Dayton residency requirement because that section, being only prohibitory, is not a general law given preference over local enactments by Section 3, Article XVIII. Further, because R.C. 9.481 exceeds the authority conferred on the General Assembly by Section 34, Article II, the superseding provisions of Section 34, Article II cannot apply to deny the city of Dayton's residency requirement for its employees the protections it is afforded by Section 3, Article XVIII, the home-rule amendment. I would reverse the declaratory judgment that the trial court granted for those reasons and remand the case to the common pleas court to enter a declaratory judgment consistent with those reasons.
3 Steven H. Steinglass and Gino J. Scarselli, "The Ohio State Constitution, A Reference Guide," Pralger Publishers (2004), 152.
4 Yaple v. Creamer (1912), 85 Ohio St. 349,97 N.E. 602.
5 Taylor v. Academy Iron Metal Co. (1988),36 Ohio St. 3d 149, 522 N.E.2d 464.
6 Rocky River v. State Emp. Relations Bd., (1989),43 Ohio St. 3d 1, 539 N.E.2d 103.
7 Brady v. Safety-Kleen Corp. (1991),59 Ohio St. 3d 705, 571 N.E.2d 132. *Page 493